He probably has the legal authority, but it’s still a bad precedent.
By The Editorial Board Jan. 10, 2019 7:11 p.m. ET
With Democrats in Congress refusing to appropriate $5.7 billion for a border wall, President Trump now says he may declare a national emergency. He’s probably right that he has the legal authority, but it would set a bad precedent that conservatives who believe in the separation of powers could live to regret.
Mr. Trump may declare an emergency that would let him reallocate funds that Congress has appropriated for military construction to build his wall. Before visiting the border on Thursday, he warned that if negotiations with Democrats don’t “work out, probably I will do it. I would almost say definitely.”
An emergency declaration could let Mr. Trump end the shutdown without conceding an inch to Speaker Nancy Pelosi, but it would strain the limits of his executive authority.
Presidents over the decades have invoked emergency powers, sometimes grounded in law though often not. While a President may sometimes need to act with dispatch, abuses of executive power prompted Congress to pass the National Emergencies Act of 1976. The law requires the President to activate his powers under one of 130 or so statutes that authorize executive emergency actions.
Members of Congress with a two-thirds vote may revoke an emergency declaration, but the President otherwise enjoys wide latitude within his statutorily delegated powers. Mr. Trump’s advisers have cited a statute that allows the Defense Secretary during a national emergency “to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”
Because President Trump has deployed troops to the border, he theoretically could reallocate some of the $10 billion or so unobligated military construction funds for a wall. This would be a broad interpretation of the law since a wall is not necessary to support troops. But the Supreme Court has nearly always upheld executive actions pursuant to delegations of Congress.
California Rep. Adam Schiff, who plays a constitutional scholar on TV, told CNN that “if Harry Truman couldn’t nationalize the steel industry during wartime, this President doesn’t have the power to declare an emergency and build a multibillion-dollar wall on the border.” Mr. Schiff is referring to the Supreme Court’s Youngstown Steel (1952) decision, which blocked Truman from nationalizing steel mills to head off a strike during the Korean War.
But Truman had not invoked congressionally delegated powers. As Justice Robert Jackson famously explained in his concurrence delineating the limits of executive power, a President’s authority is “at its maximum” when he “acts pursuant to an express or implied authorization of Congress” while shakier when acting “in the absence of a congressional grant or denial of authority.”
House Democrats are threatening to sue if the President spends military construction funds on his wall. They argue this would usurp Congress’s appropriations power. And, ironically, they may have legal standing due to a federal district court ruling in 2015 that allowed House Republicans to sue the Obama Administration for spending unappropriated funds on ObamaCare subsidies.
***
Republicans rightly criticized Barack Obama for governing by fiat. While President Trump might be on sounder legal footing than President Obama was when he legalized millions of undocumented immigrants, he would still be spending scarce military funds essentially to fulfill a campaign promise.
A wall would cost tens of billions of dollars and take years to build, yet it would neither fix the immediate challenges at the border nor longer-term problems with the immigration system. More immigration judges and detention facilities are needed to manage the surge of migrants from Central America. Loopholes in the asylum system should be closed.
But the pull to migrate to America will remain as long as the economy is humming, which is why Congress should expand the legal pathways for immigration. One danger is that an emergency declaration would further poison prospects for immigration reform as Barack Obama’s orders did.
It could also spawn worrisome legal and presidential precedents. Lower courts may enjoin a national emergency declaration, and Mr. Trump could then blame liberal judges for blocking his wall. But appellate courts might establish new constraints on executive power that circumscribe a President’s response to future crises. There’s no guarantee the Supreme Court would hear the case.
If Mr. Trump did win in court, a President Elizabeth Warren might take the precedent as license to circumvent Congress whenever it is politically expedient. Rising carbon emissions or even income inequality could be declared national emergencies. The media would cheer them on.
The left’s hyperbolic warnings about an imperial Trump Presidency haven’t borne out, and his Administration’s uses of executive power have for the most part been restrained and legally careful. A political spending fight over the wall doesn’t warrant a national-emergency raid on military funds.
Appeared in the January 11, 2019, print edition.
Comments